As I view this case, the opinion affirming the judgment herein is erroneous, consequently a rehearing should be granted.
The proceeding is to enforce, against the Wabash Railway Company, an attorney's lien, under section 691, Revised Statutes 1919, upon a cause of action based upon the wrongful death of Mern G. Welker, alleged to have been caused on April 2, 1918, by the said railway company. He was killed on the said railroad on said date, but at that time the same was in the hands of and being operated by the Director General of Railroads and not by the Wabash Railway Company, nor was the latter responsible for such death. [Adams v. Quincy, etc., R. Co., 229 S.W. 790.] *Page 364
The contract between the attorney and plaintiff, and which gives rise to the lien under sec. 691, was to enforce a cause of action against the Wabash Railway Company and the notice given, and the suit that was brought by the attorney under that contract, was given to and was brought against the said railway company and not against the Director General. On November 16, 1918, the Director General settled with the plaintiff, paying her the sum of $4000 in full settlement of "all claims and demands at common law, or under the laws of any State or of the United States" which she had, arising out of the said wrongful death. There can be no question whatever but that the Director General paid the money and settled the case. The settlement and release, signed by plaintiff, says he did, and the draft for the $4000 received by plaintiff in settlement of her case shows that the money was paid by him. The former recites that the release is made: "In consideration of the sum of Four Thousand Dollars ($4000) to me in hand paid by W.G. McAdoo, Director General of Railroads operating the Wabash Railroad" etc.; the draft for the $4000 bore the superscription "United States Railroad Administration W.G. McAdoo, Director General of Railroads" and was signed "Wabash R.R. Federal Account, F.L. O'Leary, Federal Treasurer."
Now, as I view it, the fallacy in the opinion of the majority is in holding that because the railway company used the settlement, made by the Director General, to get the suit against itself dismissed, therefore, the company is liable to plaintiff's attorney for his fee. I do not think this follows by any means. The Railway Company was not liable and never has, evenimpliedly, admitted liability.
It is true, one need not have an actual and valid cause of action against a party in order for the plaintiff's attorney, in the event of a settlement before judgment, to have a lien for his fee. All that is necessary is that there be in good faith a contention or reasonable dispute about the matter. In such case, if the *Page 365 other party settles with the plaintiff, such other party thereby impliedly admits the validity of such claim and by the settlement precludes the possibility of litigating the issue of liability, and hence should not be allowed to assert against the attorney that there was not, in law or in fact, any liability.
But that is not this case. Here, the party that was sued didnot settle with or pay plaintiff. That was done by a person who was not sued, but who was liable; and the company, which was sued but was not liable, merely used the settlement made by the Director General to effect the dismissal of the case against it. There was in this no implied admission of liability on the part of the Railway Company. The release executed by plaintiff in consideration of the money paid by the Director General, who was not sued but who was liable, extinguished or satisfied plaintiff's cause of action; and as there remained no live cause of action in her, the defendant Railway Company had the right to the benefit of that extinguishment by having the case dismissed as to it without making itself liable for, or subject to, the lien of plaintiff's attorney for his fee.
For these reasons, I cannot agree with my associates, and am of the opinion that the motion for rehearing should be sustained instead of being overruled. *Page 366